Mahadeo Chaudhary and Another vs Bhagelu Sahu and Others

Edward Chamier, C.J.—This was a suit by the appellants for possession of 2 cottahs 2 1/2 dhurs of land. It appears that the land in question formed part of an occupancy holding of 4 cottahs 11 dhurs, which was the property of the respondent Bullaki Sah. It further appears that Bullaki Sah sold 2 cottahs 8 1/2 dhurs to other persons. Then in July 1907, he sold the remainder of his holding, viz., 2 cottahs 2 1/2 dhurs, the land now in suit, to the respondent Bhagelu. The appellants, who are the landlords, brought this suit in August 1913 claiming possession of the 2 cott hs 2 1/2 dhurs and in the alternative a declaration that the transfer in favour of the respondent Bhagelu Sahu was inoperative against the appellants. The Munsif decreed the claim for possession and his decision was confirmed on appeal by the District Judge. On appeal to this Court it was held that the appellants were not entitled to succeed in the suit for three reasons, viz., first, that they sought to recover only a part of the holding as originally created, secondly, that they were not entitled to present possession of the property inasmuch as they had granted a ticca for a long term of years to other persons who were impleaded as defendants third party in the Court of first instance, and thirdly, because the ticcadar of the appellants had accepted rent from the respondent Bhagelu Sahu and had thereby acquiesced in the transfer to him and that the appellants were bound by the action of the ticcadars. In this appeal it is contended that the first reason given for dismissing the appellants'' suit is unsound and that it was not open to the learned Judge to dismiss the suit on the third ground, as that ground was abandoned in the Court of first instance and was not raised in the first Appellate Court or in appeal to this Court. It is unnecessary for us to express any opinion as to the soundness of the first ground given for dismissing the suit so far as it is a suit for possession, for there can be no doubt that the appellants are not entitled to a decree for possession while the ticca in favour of the defendants, third party, remains in force. The third reason given for dismissing the suit, in my opinion, is inadmissible. The judgment of the first Court shows that this objection to the suit with some other objections was abandoned at the trial and the record shows that no attempt was made to re-assert the objection either in appeal to the District Judge or in appeal to this Court. The result is that there is no finding on the question of fact which underlies this objection. The learned Judge must have overlooked the fact that this objection had been abandoned and that consequently the necessary finding of fact was wanting. In my opinion, the learned Judge was right in holding that the suit as a suit for possession could not be maintained, but the question is whether the appellants are entitled to a declaration that the transfer to respondent Bhagelu Sahu is not binding upon them. When the transfer in question was made, the tenant according to the concurrent findings of the first and second Courts transferred the whole of his remaining interest in the holding. It appears to me that but for the ticca there would have been no answer to the appellant''s suit. I see no reason why the appellants should not be given a declaration. They have from the very first asked the Court to make a declaration in case a decree for khas possession could not be made. On the facts as now found there can be no doubt that the transfer of 2 cottahs 2 1/2 dhurs is not binding on the appellants and that the appellants will be entitled to possession on the expiry of the ticca.

I have omitted to mention that it was suggested before us that the claim for a declaration was barred by limitation. As already stated, the claim for a declaration was made in the plaint. In none of the Courts below was it ever suggested that this claim was barred by limitation. The suit was brought a month after the expiry of six years from the date of the transfer and there was a definite allegation made n paragraph No. 6 of the plaint that the appellants had not come to know of the transfer, until a date which is within limitation. Even that assertion, the object of which must have been obvious to any one who read the plaint, did not elicit from the defendants the plea that the suit was beyond limitation either in whole or in p Article I think that we ought to decline to consider such a belated plea of limitation. I would allow this appeal in part and make a declaration in favour of the appellants that the transfer in favour of the respondent Bhagelu Sahu is inoperative against the appellants. The claim for possession will, however, stand dismissed. The parties will pay their own costs throughout.

Sharfuddin, J.

I agree.